RULE 41. SEARCH AND SEIZURE
1 (a) In General
2 (1) Definition. A search warrant is an order in writing, made in the name of
3 the state, signed by the magistrate, directed to a peace officer, commanding the
4 peace officer to search for personal property.
5 (2) Authority to Issue a Warrant. A state or federal magistrate acting within
6 or for the territorial jurisdiction where the property or person sought is located, or
7 from which it has been removed, may issue a search warrant authorized by this
9 (b) Persons or Property Subject to Search and Seizure. A warrant may be
10 issued for any of the following:
11 (1) property that constitutes evidence of a crime;
12 (2) contraband, the fruits of crime, or things criminally possessed;
13 (3) property designed or intended for use, or which is or has been used as
14 the means of, committing a crime;
15 (4) a person for whose arrest there is probable cause, or who is unlawfully
17 (c) Issuing the Warrant.
18 (1) Warrant on Affidavit or Sworn Recorded Testimony.
19 (A) In General. A warrant other than a warrant on oral testimony under
20 Rule 41 (c)(2) may issue only
on when the grounds for
issuing the warrant are
21 established in:
22 (i) a written declaration by a licensed peace officer made and subscribed
23 under penalty of perjury, or
24 (ii) an affidavit or affidavits sworn to or sworn recorded testimony taken
25 before a state or federal magistrate
and establishing the grounds for
27 (B) Examination. Before ruling on a request for a warrant, the magistrate
28 may require the licensed peace officer, affiant or other witnesses to appear
29 personally and may examine under oath the licensed peace officer, affiant and any
30 witnesses the affiant may produce. This examination must be recorded and made
31 part of the proceedings.
32 (C) Probable Cause. If the state or federal magistrate is satisfied that
33 grounds for the application exist or that there is probable cause to believe they
34 exist, the magistrate must issue a warrant identifying the property or person to be
35 seized and naming or describing with particularity the person or place to be
36 searched. The finding of probable cause may be based upon hearsay evidence in
37 whole or in part.
38 (D) Command to Search. The warrant must be directed to a peace officer
39 authorized to enforce or assist in enforcing any law of this state. It must command
40 the officer to search, within a specified period of time not to exceed ten days, the
41 person or place named for the property or person specified.
42 (E) Service and Return. The warrant must be served in the daytime, unless
43 the issuing authority, by appropriate provision in the warrant, and for reasonable
44 cause shown, authorizes its execution at times other than daytime. It may designate
45 a state or federal magistrate to whom it must be returned.
46 (2) Warrant by Telephonic or Other Reliable Electronic Means. In
47 accordance with Rule 4.1, the magistrate may issue a warrant based on information
48 communicated by telephone or other reliable electronic means.
49 (3) Warrant Seeking Electronically Stored Information. A warrant under
50 Rule 41(c) may authorize the seizure of electronic storage media or the seizure or
51 copying of electronically stored information. Unless otherwise specified, the
52 warrant authorizes a later review of the media or information consistent with the
53 warrant. The time for executing the warrant refers to the seizure or on-site copying
54 of the media or information, and not to any later off-site copying or review.
55 (d) Execution and Return With Inventory.
56 (1) Execution. The person who executes the warrant must enter the date and
57 time of the execution on the face of the warrant.
58 (2) Inventory. An officer present during the execution of the warrant must
59 prepare and verify an inventory of any property seized. The officer must do so in
60 the presence of the applicant for the warrant and the person from whom, or from
61 whose premises, the property was taken. If either one is not present, the officer
62 must prepare and verify the inventory in the presence of at least one other credible
63 person. In a case involving the seizure of electronic storage media or the seizure or
64 copying of electronically stored information, the inventory may be limited to
65 describing the physical storage media that were seized or copied. The officer may
66 retain a copy of the electronically stored information that was seized or copied.
67 (3) Receipt. The officer taking property under the warrant must:
68 (A) give a copy of the warrant and a receipt for the property taken to the
69 person from whom or from whose premises the property was taken; or
70 (B) leave a copy of the warrant and receipt at the place from which the
71 officer took the property.
72 (C) preserve the property taken until the court directs its proper disposition.
73 (4) Return. The officer executing the warrant must promptly return
74 it--together with a copy of the inventory--to the magistrate designated on the
75 warrant. The officer may do so by reliable electronic means. The magistrate on
76 request must give a copy of the inventory to the person from whom, or from whose
77 premises, the property was taken and to the applicant for the warrant.
78 (e) Motion for Return of Property. A person aggrieved by an unlawful
79 search and seizure of property or by the deprivation of property may move the trial
80 court for the property's return. The court must receive evidence on any factual
81 issue necessary to decide the motion. If it grants the motion, the court must return
82 the property to the moving party, although the court may impose reasonable
83 conditions to protect access and use of the property in later proceedings. If a
84 motion for return of property is made or heard after an indictment, information, or
85 complaint is filed, it must be treated also as a motion to suppress under Rule 12.
86 (f) Motion to Suppress. A motion to suppress evidence may be made in the
87 trial court as provided in Rule 12.
88 (g) Return of Papers to Clerk. The magistrate to whom the warrant is
89 returned must attach to the warrant a copy of the return, inventory and all other
90 related papers and must file them with the clerk of the trial court.
91 (h) Scope and Definitions.
92 (1) Scope. This rule does not modify any statute regulating search or
93 seizure, or the issuance and execution of a search warrant in special circumstances.
94 (2) Definitions. The following definitions apply under this rule:
95 (A) "Property" includes documents, books, papers and any other tangible
97 (B) "Daytime" means the hours from 6:00 a.m. to 10:00 p.m. according to
98 local time.
99 EXPLANATORY NOTE
100 Rule 41 was amended, effective September 1, 1983; March 1, 1990; March
101 1, 1992 January 1, 1995; March 1, 2006; March 1, 2011; March 1, 2012; March 1,
102 2013; __________.
103 Rule 41 is an adaptation of Fed.R.Crim.P. 41 and is designed to implement
104 the provisions of Article I, Section 8, of the North Dakota Constitution and the
105 Fourth Amendment to the United States Constitution, which guarantee, "The right
106 of the people to be secure in their persons, houses, papers and effects against
107 unreasonable searches and seizures shall not be violated; and no warrant shall issue
108 but upon probable cause, supported by oath or affirmation, particularly describing
109 the place to be searched and the persons and things to be seized." To implement
110 this constitutional protection, an illegal search and seizure will bar the use of such
111 evidence in a criminal prosecution. The suppression sanction is imposed in order
112 to discourage abuses of power by law enforcement officials in conducting searches
113 and seizures.
114 Subdivision (a) provides that a search warrant be issued by a magistrate,
115 either state or federal, acting within or for the territorial jurisdiction. The provision
116 which permits a federal magistrate to issue a search warrant is the reciprocal of the
117 federal rule, which permits a state magistrate to issue a search warrant pursuant to
118 a federal matter. It is contemplated that a search warrant will be issued by a federal
119 magistrate only on the nonavailability of a state magistrate.
120 Subdivision (a) does not require that the individual requesting the search
121 warrant be a law enforcement officer. There appears to be common-law support
122 for the use of the search warrant as a means of getting an owner's property back.
123 The primary purpose of the rule, however, is the authorization of a search in the
124 interest of law enforcement and as a practical matter the request for issuance of a
125 search warrant by someone other than a law enforcement officer is virtually
127 Subdivision (a) was amended, effective___________________, to add
128 language defining a search warrant.
129 Subdivision (b) describes the property or persons which may be seized with
130 a lawfully issued search warrant. Issuance of a search warrant to search for items
131 of solely evidential value is authorized. There is no intention to limit the protection
132 of the Fifth Amendment against compulsory self-incrimination, so items that are
133 solely "testimonial" or "communicative" in nature might well be inadmissible on
134 those grounds.
135 Paragraph (c)(1) follows the federal rule except that North Dakota's rule
136 permits the issuance of a warrant on sworn recorded testimony without an
137 affidavit. Probable cause for the issuance of a search warrant should be assessed
138 under the totality-of-circumstances test.
139 Paragraph (c)(1) was amended, effective ________________, to allow
140 grounds for issuance of a search warrant to be established in a written declaration
141 by a licensed peace officer made and subscribed under penalty of perjury.
142 The provision in subparagraph (c)(1)(B) for examination of the affiant
143 before the magistrate is intended to assure the magistrate an opportunity to make a
144 careful decision as to whether there is probable cause based on legally obtained
145 evidence. The requirement that the testimony be recorded is to insure an adequate
146 basis for determining the sufficiency of the evidentiary grounds for the issuance of
147 the search warrant if a motion to suppress is later filed.
148 The language of subparagraph (c)(1)(E), "for reasonable cause shown," is
149 intended to explain the necessity for executing the warrant at a time other than the
150 daytime. This provision is intended to be a substantive prerequisite to the issuance
151 of a warrant that is to be executed at a time other than daytime, although it is not
152 necessary that the quoted language ("for reasonable cause shown") be defined in
153 subdivision (h).
154 Former paragraphs (c)(2) and (c)(3) were deleted and a new paragraph
155 (c)(2) was added, effective March 1, 2013, to allow the magistrate to issue a
156 warrant based on information communicated by telephone or other reliable
157 electronic means under the procedure set out in Rule 4.1.
158 Paragraph (c)(3) was added and paragraph (d)(1) was amended, effective
159 March 1, 2012, to provide guidelines for warrants authorizing the seizure of
160 electronic storage media and electronically stored information and for the
161 inventory of seized electronic material. The amendments were based on the
162 December 1, 2009, amendments to Fed.R.Crim.P. 41.
163 Subdivision (d) is intended to make clear that a copy of the warrant and an
164 inventory receipt for property taken shall be left at the premises at the time of the
165 lawful search or with the person from whose premises the property is taken if he is
167 Paragraph (d)(3) was amended, effective__________________, to require
168 the officer taking property under a warrant to preserve it until the court directs its
170 Paragraph (d)(4) was amended, effective March 1, 2013, to allow an officer
171 to make a return by reliable electronic means.
172 Subdivision (e) requires that the motion for return of property be made in
173 the trial court rather than in a preliminary hearing before the magistrate who issued
174 the warrant. It further provides for a return of the property if: (1) the person is
175 entitled to lawful possession, and (2) the seizure is illegal. However, property
176 which is considered contraband does not have to be returned even if seized
177 illegally. The last sentence of subdivision (e) provides that a motion for return of
178 property, made in the trial court, shall be treated as a motion to suppress under
179 N.D.R.Crim.P. 12. The purpose of this provision is to have a series of pretrial
180 motions disposed of in a single appearance, such as at a Rule 17.1 (Omnibus
181 Hearing), rather than in a series of pretrial motions made on different dates causing
182 undue delay in administration.
183 Subdivisions (a), (b), and (c) were amended in 1983, effective September 1,
184 1983, to add persons as permissible objects of search warrants. These amendments
185 follow 1979 amendments to Fed.R.Crim.P. 41 and are intended to make it possible
186 for a search warrant to issue to search for a person if there is probable cause to
187 arrest that person; or that person is being unlawfully restrained.
188 Subdivisions (c) and (d) were amended, effective March 1, 1990. The
189 amendments are technical in nature and no substantive change is intended.
190 Subdivision (e) was amended, effective March 1, 1992, to track the federal
192 Rule 41 was amended, effective March 1, 2006, in response to the
193 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
194 language and organization of the rule were changed to make the rule more easily
195 understood and to make style and terminology consistent throughout the rules.
196 SOURCES: Joint Procedure Committee Minutes of
197 ____________________; January 26-27, 2012, pages 26-27; April 28-29, 2011,
198 page 17; September 23-24, 2010, page 32; April 29-30, 2010, page 20, 25-26;
199 April 28-29, 2005, pages 5-8; January 27-27, 2005, pages 33-34; April 28-29,
200 1994, pages 22-23; November 7-8, 1991, page 4; October 25-26, 1990, pages
201 15-16; April 20, 1989, page 4; December 3, 1987, page 15; October 15-16, 1981,
202 pages 12-15; December 7-8, 1978, pages 23-26; October 12-13, 1978, pages
203 15-19; April 24-26, 1973, page 14; December 11-15, 1972, pages 31-37;
204 November 18-20, 1971, pages 3-9; September 16-18, 1971, pages 11-32; March
205 12-13, 1970, page 3; November 20-21, 1969, pages 19-24; May 15-16, 1969,
206 pages 21-23; Fed.R.Crim.P. 41.
207 STATUTES AFFECTED:
208 SUPERSEDED: N.D.C.C. §§ 29-29-01, 29-29-02, 29-29-03, 29-29-04,
209 29-29-05, 29-29-06, 29-29-07, 29-29-10, 29-29-11, 29-29-12, 29-29-13, 29-29-14,
210 29-29-15, 29-29-16, 29-29-17.
211 CONSIDERED: N.D.C.C. §§ 12-01-04(12), 12-01-04(13), 29-01-14(3),
29-29-01, 29-29-08, 29-29-09, 29-29-18, 29-29-19, 29-29-20,
213 N.D.C.C. ch. 28-29.1. N.D.C.C. ch.19-03.1.
214 CROSS REFERENCE: N.D.R.Crim.P. 4.1 (Complaint, Warrant, or
215 Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 12
216 (Pleadings and Pretrial Motions); N.D.R.Crim.P. 17.1 (Omnibus Hearing and
217 Pretrial Conference); N.D.R.Ct. 2.2 (Facsimile Transmission); N.D. Sup. Ct.
218 Admin. R. 52 (Interactive Television).